Brookline Retirement Board,

Kenneth R. Bagnall, Esq.

Thomas F. Gibson, Esq. Kimberly A. Fletcher, Esq.

2400 Massachusetts Avenue Cambridge, MA 02140

Appearance for Intervenor,

Dorothy Jo Costa:

None

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

I affirm the decision of respondent. I find that Petitioner, as the G.L. c. 32, § 11(2)(c) beneficiary of the not yet retired deceased member, is not entitled to any benefits because deceased left at his death two minor children entitled to elect through their legal guardian pursuant to G.L. c. 32, § 12(2)(d) and § 12B, the member-survivor allowance under option (d), and to receive monthly allowances while they remain minors or full-time students, or remain alive, and any residual accumulated deductions revert to the pension fund of respondent and cannot be distributed to petitioner.

DECISION

Pursuant to G.L. c. 32, § 16(4), the petitioner, Andrea Scichilone, is appealing the September 17, 2007 decision of the respondent, Brookline Retirement Board, denying her claim for benefits as the 100% G.L. c. 32, § 11(2)(c) beneficiary of the deceased member, Robert Harvey, who died while an active member in-service. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held November 12, 2009, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L. c. 7, § 4H.

Various documents are in evidence. (Exs. 1 - 13.) The parties filed pre-hearing memoranda. (Exs. A & B.) One tape was used. No testimony was presented. Although Dorothy Jo Costa, ex-wife, mother and legal guardian of the deceased's minor children was granted the status of intervenor in this appeal, she did not appear for the hearing. Both parties made arguments at the hearing.

FINDINGS OF FACT

1. Robert Harvey, d.o.b. 3/9/63, was employed by the Town of Brookline's Water Department from July 2006 until his death on April 29, 2007. With this service he became a member of the Brookline Retirement System. He had prior membership service between July 1997 and December 2005 with the City of Waltham. This creditable service was transferred to the Brookline Retirement System for his account. (Exs. A, B, 3 & 5.)

2. In July 2006, Mr. Harvey named Andrea Scichilone as his 100% G.L. c. 32, § 11(2)(c) beneficiary, using the proper form and filing it with the Brookline Retirement Board. (Exs. A, B & 4.)

3. When Mr. Harvey died, he had not commenced the retirement process and was an active member in-service. At the time, he was single and divorced from Dorothy Smith Harvey. (Exs. A, B & 5.)

4. By the time of his death, Mr. Harvey's ex-wife remarried and became known as Dorothy Jo Costa. (Exs. A & B.)

5. Kayla Lynn Harvey was born May 8, 1991 and Robert Joseph Harvey was born June 22, 1997, both to Dorothy and Robert Harvey. (Exs. A, B & 6.)

6. The deceased, Robert Harvey, never nominated a G.L. c. 32, § 12(2)(d) beneficiary after his divorce from Dorothy and before he died. Before he died he never changed his G.L. c. 32, § 11(2)(c) beneficiary from Ms. Scichilone, and he never added any other beneficiaries to also be Section 11(2)(c) beneficiaries along with her. (Exs. A & B.)

7. The deceased, Robert Harvey, never requested to have additional deductions withheld from his regular compensation to increase his annuity account pursuant to G.L. c. 32, § 22(1)(g)(2). (Exs. A & B.)

8. By letter to the Brookline Retirement Board of May 24, 2007, Dorothy Jo Costa sought any benefits that Kayla and Robert Harvey were entitled to receive from their father's retirement account. She explained that she would be filing a claim as their mother and custodian pursuant to G.L. c. 32, § 12(2)(d). She informed the Board that she was their legal guardian. She included the children's birth certificates with her request. (Exs. A, B & 6.)

9. On May 30, 2007, Dorothy Jo Costa was appointed the guardian of Kayla and Robert Harvey. (Exs. A, B & 8.)

10. As of September 2009, Kayla Harvey has been a full-time student at Bridgewater State College. (Exs. A, B & 12.)

11. As of the date of death of Robert Harvey, the total accumulated deductions with interest in his account with the Brookline Retirement System was $29,118.90. (Ex. 13.)

12. On or about May 30, 2007, Dorothy Jo Costa filed an election of benefits form under G.L. c. 32, § 12(2)(d) with the Brookline Retirement Board. She chose on behalf of Kayla and Robert Harvey, the member-survivor benefits. (Exs. A, B & 7.)

13. On or about June 1, 2007, Dorothy Jo Costa filed with the Brookline Retirement Board, her May 30, 2007 appointment as the legal guardian of Kayla and Robert Harvey. (Ex. 8.)

14. By letter of September 7, 2007, Andrea Scichilone filed a request with the Brookline Retirement Board to receive any benefits that she was entitled to as the late Robert Harvey's G.L. c. 32, § 11(2)(c) beneficiary. (Exs. A, B & 9.)

15. By letter of decision of September 17, 2007, the Brookline Retirement Board denied Ms. Scichilone's request. The Board explained that under G.L. c. 32, § 12(2)(d) "upon the death of an active member in service, certain statutory benefits become payable to the surviving spouse and dependent children. These statutory benefits supercede a return of the member's accumulated deductions which otherwise would have been payable under G.L. c. 32, § 11 to a beneficiary." The Board further explained "that there is no surviving spouse," but the deceased's surviving minor children have a legal guardian, and pursuant to "the statutory scheme, benefits must be paid … to the minor children," instead of to the Section 11(2)(c) beneficiary. Ms. Scichilone was given notice of her right to appeal this decision. (Ex. 2.)

16. The Brookline Retirement Board gave Ms. Scichilone notice dated September 18, 2007 that she had the opportunity to provide "written arguments" to the Board concerning her right to any benefits from the late Mr. Harvey's account. Specifically, the Board sought her argument "on the issue of why the rights … under G.L. c. 32, § 11(2)(c), are not extinguished by G.L. c. 32, § 12B and § 12(2)(d)," in regard to the claims made on behalf of the late Mr. Harvey's children. (Ex. 10.)

18. Ms. Scichilone filed legal argument to support her claim for benefits with the Brookline Retirement Board by letter of September 30, 2007. The Board did not issue a new decision thereafter. (Exs. A & B.)

Conclusion

The decision of the Brookline Retirement Board is affirmed. Ms. Scichilone is not entitled to any benefits from the account of the late Robert Harvey. The late Mr. Harvey never retired and was single at the time of his death. He left an ex-spouse who he never nominated as his Section 12(2)(d) beneficiary, and who had remarried by the time he died. This ex-spouse is the mother of his children, Kayla and Robert Harvey. He never had additional deductions taken from his regular compensation to increase the size of his annuity savings fund pursuant to G.L. c. 32, § 22(1)(g). Ms. Scichilone was his only G.L. c. 32, § 11(2)(c) beneficiary. His ex-spouse, Dorothy Jo Costa, was appointed the legal guardian of Kayla and Robert Harvey on May 30, 2007. Both were minors at the time of their father's death, and Kayla is a full-time student as of September 2009. These are the key facts to fit into the pertinent statutory provisions of G.L. c. 32, § 11(2)(c), § 12(2)(d), and § 12B.

Section 11(2)(c) allows a member to nominate a person or persons using a prescribed form, to be the beneficiaries of his accumulated deductions at the time of his death if he dies in the status of an active member in service. The member is also able to change the beneficiaries from time to time using the prescribed form. But, if the member dies before retiring, the rights of a person who is validly named a Section 11(2)(c) beneficiary can be trumped if the member designated a Section 12(2)(d) beneficiary and that person is eligible to receive the allowance that provision provides.

The portion of Section 11(2)(c) explaining this reads in pertinent part as follows: Payment shall not be made under this subdivision if the deceased member is survived by a beneficiary appointed under option (d) of subdivision (2) of section twelve who is eligible to receive the allowance provided by said option, nor if the decreased member is a male and is survived by a person eligible to receive the allowance provided for in section twelve B, or is a female and is survived by a child eligible to receive the allowance provided for in section twelve B, unless the widow or person acting for such child elects, in lieu of receiving allowances provided for in said section twelve B, to have payment of any moneys due made in accordance with the provisions of this paragraph.

The key action necessary to trump the rights of the Section 11(2)(c) beneficiary is an election by an eligible person to receive the Section 12(2)(d) member-survivor allowance.

Section 12(2)(d) addresses the member-survivor allowance. If the member dies having nominated a person to be his Section 12(2)(d) beneficiary who is eligible to be that beneficiary because of being a person listed in Section 12(2)(c), then that person "shall receive the yearly amount of the option (c) allowance to which such member would have been entitled had his retirement taken place on the date of his death." And, if the not yet retired member died under age fifty-five, then the option (c) allowance is paid out based on what "such member would have been entitled had he attained age fifty-five at the time of his death, and had his retirement taken place on the date of his death." When no Section 12(2)(d) beneficiary has been designated, and the not yet retired member dies with at least "two years of creditable service," and "leaves a spouse to whom such member had been married for not less than one year," that spouse can elect "to receive the member-survivor allowance under this option."

Section 12(2)(d) further provides a route to benefits for surviving children. The retirement board has to determine what if any benefits the "spouse or the person who may act for the [deceased's] child or children" may receive. Section 12B provides that if the deceased died as a single person, the surviving children may be entitled to the member-survivor allowance a surviving spouse would have received. Section 12B also provides eligible children with an additional monthly allowance. The children need a legal guardian to elect the member-survivor allowance for them. If it is not elected for them, then the Section 11(2)(c) beneficiary may be entitled to any residual accumulated deductions once the children stop being eligible for the monthly allowance. This election for the children by the legal guardian has to be accomplished by filing a prescribed election form with the board. This is what Dorothy Jo Costa has done as Kayla's and Robert's legal guardian.

There is a different outcome if the deceased left a surviving spouse. Under Section 12B, if the deceased did not nominate anyone to be a Section 12(2)(d) beneficiary, and has a surviving spouse then that spouse can receive, if she elects to, the member-survivor allowance under Section 12(2)(d). In addition, if there are surviving children of the deceased member "who are under age eighteen or over said age and physically or mentally incapacitated from earning on the date of death of the member, or under age twenty-two if a full-time student," then these children are entitled, not to share in the surviving spouse's member-survivor allowance, but to an "allowance of one hundred and twenty dollars a month for one child plus an allowance of ninety dollars a month for each additional child." If the surviving spouse "remarries, then her receipt of the Section 12(2)(d) member-survivor allowance stops, and the allowances payable for the benefit of any children under this section also terminate until a guardian is appointed for the children to continue to receive benefits.

Ms. Scichilone contends that her rights are not extinguished by, but as Section 11(2)(c) explains are only "subject to," any allowance provided by Section 12(2)(d) and Section 12B to survivors of the late Mr. Harvey. Ms. Scichilone cites the language of Section 12B that refers to the member-survivor allowance that a surviving spouse receives, and notes that since the late Mr. Harvey did not leave a spouse, nothing contained in the provision can be given out to Mr. Harvey's children; that all the children can receive is the monthly allowance until they are no longer eligible to receive it. Ms. Scichilone argues that the term in Section 12B of "surviving spouse" had previously been "widow," someone who was married to the deceased and who had not remarried, and that it was changed to surviving spouse to encompass widowers as well. Ms. Scichilone argues the portion of Section 12B that ends the surviving spouse's receipt of the member-survivor allowance once she remarries, means the surviving children can only receive the monthly allowance and then, only through a legally appointed guardian. She contends that Kayla and Robert could never be entitled to the member-survivor allowance so that there would likely be accumulated deductions left in the late Mr. Harvey's account once the children are no longer eligible for that monthly allowance. Therefore, she argues that Section 11(2)(c) entitles her to the residual amount of the accumulated deductions.

Ms. Scichilone argues the case of Ann Busi v. Malden Retirement Board, et al, 1994 WL 879649 (Mass. Super.), 2 Mass. L. Rptr. 284 (1994), shows Section 12(2)(d) and Section 12B do not address current societal issues such as divorced couples who had children together just like the late Mr. Harvey and Dorothy Jo Costa. In Busi, the deceased had a mentally ill son by his first wife. He remarried once they divorced and adopted the second wife's children. When he died his mentally ill son wanted to secure benefits, but Mr. Busi had named his second wife as his beneficiary. Nevertheless, the Court found the purpose of Section 12B was to provide benefits for surviving minor or dependent children, and found the mentally ill son eligible for Section 12B benefits. Ms. Scichilone contends her circumstances are like those in Busi because she is the named beneficiary although the late Mr. Harvey left children who qualify for at least some time period for the Section 12B monthly allowances. Although she agrees they should receive those monthly allowances, she argues that there needs to be a balancing of the benefits so that as the named beneficiary she is entitled to the remainder of the accumulated deductions once the children no longer qualify to receive the monthly Section 12B allowance. She sees no right Busi provides the children of the late Mr. Harvey to the benefit of a member-survivor allowance through Mr. Harvey's ex-wife, Dorothy Jo Costa. Ms. Scichilone's arguments are not persuasive.

Section 12B contains provisions that are pertinent to determine the rights of Kayla and Robert Harvey.

If [at the time of death of the member] there is no surviving spouse … or such surviving spouse dies, such amount of the member-survivor allowance as would have been payable or would be payable to a spouse under the provisions of Option (d) of subdivision (2) of section twelve shall be paid for the benefit of such surviving children to a legally appointed guardian, together with the allowances provided in this section for children.

This is the provision that reaches Kayla and Robert Harvey. Their mother, Dorothy Jo Costa, has no entitlement to any Section 12(2)(d) or Section 12B benefits other than as their legal guardian. In that status she can elect to receive the member-survivor allowance of Section 12(2)(d) for the benefit of these children. She also receives the Section 12B monthly allowance the children are entitled to for their benefit until their status changes to make them no longer eligible to receive them.

Ms. Scichilone is also not entitled to any of the late Mr. Harvey's accumulated deductions. Section 12B explains that if the surviving child or children are eligible to receive and the guardian elects for their benefit the member-survivor allowance, then any accumulated regular deductions of such [deceased] member and the amount equal to the value of the regular deductions credited to his account … together with regular interest thereon to the date of his death, shall be transferred to the pension fund, to be merged, and to be used, on a basis that shall be determined by the actuary, for the exclusive purpose of defraying the payment of such allowances, and shall not be included in the factors that enter into the ordinary determination of the pension appropriation required by paragraph (d) of subdivision (3) of section twenty-two.

Because Kayla and Robert Harvey are entitled to the member-survivor allowance of Section 12(2)(d) through the election made for them to receive it by their legal guardian, the late Mr. Harvey's accumulated deductions all go to the Brookline Retirement Board to defray the costs of paying the allowance. Therefore, once the children are no longer entitled to the monthly allowance, there will be no residual accumulated deductions available for Ms. Scichilone to receive as the Section 11(2)(c) beneficiary.

If the deceased member had arranged for additional deductions to be taken out of his regular compensation pursuant to Section 22(1)(g), then Section 12B calls for those additional deductions to "be paid in accordance with paragraph (c) of subdivision (2) of section eleven," and so, to Ms. Scichilone. The late Mr. Harvey did not have additional deductions withheld so Ms. Scichilone cannot receive any accumulated deductions through this route.

The above conclusions concern the rights of Kayla and Robert Harvey and about what happens to all the accumulated total deductions that the late Mr. Harvey left at his death. These are the same conclusions reached by the Brookline Retirement Board. These conclusions are consistent with the case law. See, Hathaway-Medeiros v. State Board of Retirement, CR-07-492 (DALA, 2009); Harford v. Mass. Turnpike Authority Employees' Retirement Board, CR-05-165 (DALA, 2005); Horgan-Spenser v. Boston Retirement Board & Kevin Boyle, CR-00-73 (DALA, 2001), aff'd (CRAB, 2002). The decision of the Brookline Retirement Board is affirmed. So ordered.

Tool Name: Baynote, Inc. Recommendations

The information below summarizes privacy policy terms related to content recommendations on Mass.Gov and is excerpted from the full Mass.gov privacy policy.

Purpose: Displays relevant content recommendation based on the site usage pattern of all users of Mass.Gov. If Personalization is enabled (the default setting), your personal site usage pattern today and on prior visits to Mass.gov will be displayed to you and will also be a factor in determining personalized relevant recommendations for you.

Data Collected: A random anonymous unique identifier is assigned and tracked for each user of the website. This identifier is sent to our vendor, Baynote, when you view a page, open a document or click a link on Mass.Gov. Our vendor then analyzes the specific content that was viewed and provides content recommendations to similar content that you may find useful. A full description of what data Baynote collects and how it uses this data is available at http://www.baynote.com/baynote-services-privacy-policy/. Please note that the tool uses persistent cookies. These cookies will be Mass.gov domain cookies and not Baynote domain cookies. The cookies will store information related to a user’s Mass.gov Web site usage, including the URL and title of sites recently visited and the random anonymous unique identifier assigned to the user. In general, and as described in more detail in Baynote’s service privacy policy linked to above, Baynote only uses the personalized information it gathers to provide recommendation services and display past usage for Mass.Gov users and will not share this information with any third parties, including advertisers. The information collected will not affect content you may see on sites unaffiliated with Mass.Gov.

Express Opt Out: If personalization of recommendations based on the content you view is not desired, or you do not wish to display a list of recently viewed Mass.gov pages, you may turn personalization off. You can do this by using either the switch located below in this privacy policy or an identical switch located directly above the content recommendations and recently viewed content boxes displayed on the Mass.gov site. Once you turn off personalization, your content recommendations will be based on the overall traffic patterns of all users of Mass.Gov and they will not specifically take into account your own personal usage patterns. If you turn off personalization, information collected by this Tool that is associated with your content usage will be deleted from your cookies, and no further information about your content usage will be sent to our vendor.

Disabling personalization will affect both content recommendations and recently viewed page links. If you turn off personalization, this “off” setting will persist as you browse Mass.Gov and during any future sessions. The opt-out setting is stored in a persistent cookie on your computer. The setting will remain in effect so long as you use the same computer with the same Internet browser. If you delete the cookie that contains the opt-out setting or use a different browser or computer, personalization will be enabled and you will need to disable it again on your next visit, if desired.

For our full privacy policy, please close this window and see the Site Policies or Privacy Policy link in the footer of the page.